Kar also known as Ra, Ka v. Nsl
Read the full judgment text of FCMC 11862/2021 on BabelCite. This Family Court judgment was delivered on 29 May 2026.
1. This is the Petitioner wife’s (“ W ”) application for ancillary relief against the Respondent husband (“ H ”); and also H’s application for variation of the maintenance pending suit.
Cites 7 cases
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FCMC 11862/2021 [2026] HKFC 101 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NO. 11862 OF 2021 ________________________ BETWEEN
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________________________ J U D G M E N T ________________________ This Application 1.This is the Petitioner wife’s (“W”) application for ancillary relief against the Respondent husband (“H”); and also H’s application for variation of the maintenance pending suit. 2.The trial took place over four days from 7th to 10th April 2025, W is represented, (and from February 2025 on legal aid), and H acts in person. Parties background 3.The parties got married in India on XX July 2008, W moved to HK to live with H in October 2008. 4.W was aged 41 at the time of trial, she has been a housewife during the marriage. She had also taught at a tutoring centre briefly and worked at H’s interior design and construction businesses from 2010 until April 2022, W says she was then constructively dismissed. 5.H was aged 47 at the time of the trial. He is an airplane pilot ad employed as such since October 2006; he also owns an interior design company (“LH”) and a construction company (“LHC”). 6.The child of the family N was born on XX February 2011. N is a special needs child, having been diagnosed with literacy and concentration challenges, and mild ADHD; she receives special accommodation at school. W is her primary carer. Litigation History 7.W filed an application for relocation with N to India on 2 June 2022, this matter was resolved by consent and made an order of Court on 22 September 2022. But W says that with the complete lack of funds from H, she had been unable to move back to India. 8.By the same Order on 22 September 2022, joint custody of N was granted to both parents, with care and control to W, and defined access to H. 9.On application by W, and after a hearing before DDJ WY Ho, the MPS Order dated 20 October 2023 grants
H is also to be responsible for paying:
10.H filed an application for variation to this Order on 7 November 2023, but on being asked what change of circumstances he is alleging 18 days after the MPS Order, he sought to and was granted leave to withdraw this at the direction hearing on 29 May 2024. 11.When H failed to pay maintenance and legal costs provision pursuant to the October 2023 Order, W took out an application for an Attachment of Income (“AOI”) Order in December 2023, but this could only apply to N’s interim maintenance. H’s Variation Application 2025 12.H filed a second variation of maintenance application on 11 March 2025. This was less than one month before the trial. 13.By then, the Court has ordered H to file his narrative affirmation on or before 14 March 2025, but H did not comply, this was despite the Court making an Unless Order which states:
Instead, H chose to file this variation application with his supporting affirmation on 11 March 2025. This application is being heard at the same time as this ancillary relief trial. 14.W filed her opposition on 26 March 2025. 15.The basis of a variation application rests on the finding of material change of circumstances; whereupon the circumstances of the parties will be considered de novo. In reading his supporting affidavit, H’s variation application rests on the following bases:
16.W’s submission is that there has been no change of circumstances, and H has made no submission on his own application for this hearing. W’s and N’s maintenance will be considered in this judgment. Parties Evidence 17.The parties’ evidence before the Court are as follows:
The Applicable Law & Legal Principles Legal Principles with regard to determination of ancillary relief claims 18.Section 7 of the Matrimonial Proceedings and Property Ordinance (“MPPO”), Cap 192 sets out the matters that the court must have regard to when making orders for ancillary relief:
19.The Court of Final Appeal in its landmark judgment of LKW v DD [2010] 13 HKCFAR 537 has laid down a 5-step approach in assessing the division of the parties’ matrimonial assets:
20.The above approach is to be considered against 4 guiding principles, namely:
21.The principles are trite and will be applied to the issues in this case hereinbelow. Legal principles with regard to failure to disclose financial information 22.On this, I turn to the case of Moher v Moher[2019] EWCA Civ 1482; [2020] 2 WLR 89; [2020] 1 FLR. 225; [2019] 3 FCR. 244, which was quoted in the case of CCYL v CCSR [2022] HKFC 238 by HHJ I Wong at paragraph 86 therein:
23.It has been said where a party has been guilty of not making full disclosure, he could not complain if uncertainties were determined against him: L v C [2007] 3 HKLRD 819, at paragraph 191(2). And for completeness, in the case of NG v SG (Appeal: Non-Disclosure) 2011 EWHC 3270 (Fam), [2012] 1 FLR 1211, paragraph 16 (viii) reads as follow:
Issues 24.The parties Agreed / Disputed List of Issues come to 40 paragraphs, 19 of which was agreed, with H putting forward 21 more which are disputed by W. 25.Following our statutory provisions and the well-trodden principles of LKW v DD; it is my determination that the following additional specific issues fall to be determined :
26.There are issues on the list which include values of H’s bank accounts and securities account. To the extent that the amounts in the Agreed / Disputed Schedule of Assets & Liabilities (the “A & L Schedule”) are backed by bank statements before the Court and referred to me, those should be the value that will be adopted by this Court. 27.Other issues on this list which are not covered above are either to be considered under the aforesaid legal principles, or irrelevant. W’s Case 28.W says that during the marriage, she had access to H’s salary and use of a credit card. She had also worked in H’s two companies and took a salary from them. 29.It is W’s case that they live in a 700+ square feet 3-bedroom apartment, enjoyed a comfortable lifestyle with domestic helper, regular dining out and frequent travels. 30.W says that there had been a number of instances of failure to give full and proper disclosure, particularly those pertaining to H’s income; and that some documents H produced might have been fabricated. 31.W says that H had failed to comply with a Court Order to pay MPS, interim maintenance for N, and legal costs provisions, forcing her to take loans from her family members. W’s Open Proposal 32.W asks for a clean break from H. 33.Based on W’s assessment of the matrimonial pot, the net value would be $11,457,723[1], with some adjustments made during the trial. 34.W asks for 50% sharing of the matrimonial pot, hence $5,728,861. With the negative value of $3,600,728 on her side of the balance sheet, the equalisation amount would be $9,329,589. 35.W asks for this amount to come from sale of the FMH (value determined to be $7,353,625) and for the balance by instalments over three years. 36.As for N, she asks for H to bear all of N’s expenses due to the disparity in their respective income / earning capacity, hence:
H’s case 37.As H has failed to comply with Orders to file a Narrative Affidavit, nor prepared opening or closing submissions, his case could only be gleaned from his position on some of the values of the assets and commentaries, and some of his cross examination of W. 38.Broadly speaking, he says:
H’s Open Proposal 39.H has failed to comply with the Order of Court dated 21 February 2025 at the PTR to file his open proposal on or before 31 March 2025. The Court is therefore also unaware of his position in this regard. 40.However, from his oral opening, he said that his average primary income is $80,000, and therefore he will pay half to W and N, and as W has a earning capacity of $15,000, he offers to pay her $25,000 for both. The matrimonial pot represented by parties for the trial 41.The following table is adopted from the W’s opening submission of the parties’ respective positions, and also incorporates the concessions made by W to H’s numbers at trial.
Discussion H’s engagement in these proceedings 42.It is important to set out first and foremost the way H has chosen to participate in these proceedings. 43.H has failed to comply with a number of Orders (these are set out in detail below at paragraph 169), there were occasions when he has chosen to do it in his own good time, or not produced documents as ordered by court. 44.Specifically, he had asked for extension to file his answers to W’s second questionnaire for 3 times, and only produced his answers more than one year after the questions were filed. 45.He has failed to file his narrative affidavit which has rendered it extremely difficult for the Court to have a full grasp of his case, as well as a lack of reference to any supporting information to what he alleges. 46.He has failed to file his opening submission, which again makes it an almost impossible task to try to piece together his arguments and the relevant documents in the bundles which could have supported them. 47.On this, I make reference to the Judgment of our former Chief Justice G Ma, as a Recorder then, in the case of Yau Chiu Wah v Gold Chief Investment Limited and China Broadband Corporation Limited HCA908/2001, where he said that it is not the role of the Court to search through papers to discover for itself the material facts. While that case involves an exparte application, the principle is still trite and applicable:
48.There is a total of 27 bundles before me at this trial, of which 23 are exhibits bundle. 49.H was informed at trial (more than once) that he had to prove his case and draw the Court’s attention to where the evidence is in the bundles; and that the Court could not be expected to go through all the documents to look it up for him. He was also informed that he was given the opportunities to make his case known but he has chosen not to take that up. I shall also repeat here that at the PTR dated 21 February 2025, he was ordered to file his narrative affidavit on or before 14 March 2025, he failed to do so and filed his 2nd variation application instead on 11 March 2025. Despite all the indications I gave at trial as to the consequence of his lack of submission, and also when I explained to him about the closing submission at the end, I had specifically told him that I expect cross references, he had still opted not to make good the lack of information and supporting evidence. H did not file a closing submission. 50.H also attempted to introduce running numbers on his various accounts, saying that since the agreed A & L Schedule, money had been used from his accounts to pay for one item or another of his expenses. He was also informed that the Court would base its assessment on the numbers in the A & L Schedule which can be cross referenced to statements produced as evidence, subsequent reference to new balances would not be taken into account unless supported by statements and conceded by W. 51.Doing the best I can, the following discussion and analysis are made against this factual backdrop. The Matrimonial Pot H’s Assets Former Matrimonial Home (“FMH”) 52.The FMH is owned by H, SJE was appointed at the Case Management Hearing by my Order of 20 February 2024. The SJE’s report was dated 3 February 2025 and filed on 7 February 2025, citing the value as $14.1 million. 53.According to the A & L Schedule, H says that the value should be $13,990,000, I have not been taken to look at supporting documents for his proposed number. 54.At the PTR on 21 February 2025, the following orders were given:
55.W says that H did not contact the SJE until 14 days after the PTR, his letter to the SJE was 4 pages long, and “in form of declaratory statement rather than clarifying questions”. Once gain, H failed to comply with the timeline and directions in an Order. 56.H also wrote to ask the SJE to attend the hearing instead of taking out a subpoena. There is no supplemental report before the Court. 57.In the absence of a submission on H’s case, and the lack of further information from trial, I was assisted by W’s counsel on three issues raised by H in prior correspondence; although H did not raise this, nor provide reference or elaboration:
58.In the circumstances, and with lack of argument, information or supporting documentation for consideration from H, I accept the valuation from the SJE on the FMH as $14,100,000. H’s UK Property (“Q”) 59.The SJE Report was also ordered on 20 February 2024, the SJE provided a report on 23 February 2025 (filed on 24 February 2025), citing the value as GBP285,000, translated into $2,861,400 according to W’s counsel’s submission. 60.As with the FMH, H filed his request for supplemental report late on 15 March 2025. It was 20 days after receipt of the report instead of 5 days, and 3 days passed the deadline for a supplemental report to be filed. W says H listed some “established facts”, which are disputed; and H also failed to bring in the SJE for cross examination as the latter has declined his request for lack of agreement on the tenancy agreement. No subpoena was taken out. No supplemental report was produced. 61.While there is a Tenancy Agreement to this property, dated 23 July 2008 and produced by H with his first Answer to W’s questionnaire on 12 December 2022; the main issue in this property was a Memorandum of Understanding dated 20 July 2008 (the “MOU”). 62.At this point, I shall quote hereunder the sequence of events from the W’s counsel’s submission relating to the production of the MOU and the interaction with the SJE:
63.I will also add to this sequence of events: that also on 20 February 2025, the SJE had said specifically that he aimed to finish the valuation report on that day subject to a question regarding scaffolding at the building, and H did respond to him on the scaffolding on the same day. 64.The finalized report was sent to the parties on 23 February 2025, to which the H on 24 February 2025 in his email to the SJE strangely referred to as the “preliminary draft report”, which it was not. H says the SJE have missed certain factors including that the tenants are in a “Long-term Tenancy with Enhanced Protection”, and citing some terms of this alleged arrangement. At this point, still no MOU was produced. 65.On 25 February, the SJE wrote back with several questions, asking specifics regarding the alleged terms, and also said “I cannot move forward with the valuation until the above matters are confirmed and both parties are in agreement regarding the terms of the tenancy agreement if there is no documented evidence.” There follows a flurry of emails from H to the SJE, and on 26 February 2025, he said that there was a binding MOU. On 26 February, the SJE stated, while acknowledging that the alleged additional provisions are likely to have some impact on value if enforceable, no documented evidence has been provided to confirm these details, and he noted that W does not agree with these allegations. SJE says that it is not the role of the expert witness to decide the terms of the tenancy and the valuation was based on the document provided to him. 66.On 26 February 2025 at 6:05 pm, H wrote to the SJE and said that “critical information was missed”, and the report was “incomplete without this critical evidence and supporting documentation”. At 6:50 pm the same day, he produced the MOU and says that the current valuation is invalid. 67.H relied on this MOU to say that the tenant has accrued certain rights after living there for more than 17 years, as a “long-term sitting tenant”; and that the tenant could not be removed from the property at the usual two months’ notice, which was one of the bases of the valuation of the property when considering timing of delivery of vacant possession. 68.H first produced the Tenancy Agreement dated 23 July 2008 with his First Answer to Questionnaire in December 2022, yet he failed to produce this purportedly important MOU, signed three days prior to the Tenancy Agreement, until more than three years afterwards on 26 February 2025, and less than 6 weeks before this trial. 69.This MOU was titled “Memorandum of Understanding (MoU) & Supplemental Tenancy Agreement”, and states that it “formalize terms superseding any tenancy agreement”. Given that the Tenancy Agreement produced by H was dated 3 days after this MOU, it is unclear as to what this MOU seeks to supersede. I also notice that this MOU was signed by H himself while the Tenancy Agreement was signed by someone else, a VN on behalf of the Landlord. 70.W’s counsel goes on to put forward the following arguments:
71.H has failed to disclose the MOU for more than three years for no good reason. This is counting back to when he first produced the Tenancy Agreement in December 2022; and then the filing of three Form Es, the MoU was never produced. He was present at the hearing when the SJE was being appointed, he paid for the SJE, he was aware of the inspection of the property in mid-January 2025, he was aware of the extension of time for the SJE to produce his report granted in February 2025. The terms of the MOU were belatedly mentioned by him but not the document itself, he did not respond to the SJE’s request for the MOU until three days after the SJE report was finalized. The MOU bearing his signature was stated to be signed on a day when he was not in the UK, but instead getting married in India. If this document is so “critical” as he claims, it is not accepted that his disclosure on this is so lacking. 72.Based on the above, I find that no weight should be placed on this MOU. I have no revised valuation of the UK property, I accept the SJE’s report and that it was based on the information available and produced to him at the relevant time. The amount to be attributed to this property is as per the report, which is $2,861,400. H’s MPF 73.H declares that he has an MPF of $4,883,889 in his updated Form E. There is a screenshot of a webpage of the MPF held with HSBC dated January 2025. 74.For completeness, it is best to record H’s position on this sum in the A & L Schedule:
75.To respond to some of these contentions:
76.On the issue of illiquidity discount, it is well established that in considering the role of a retirement fund in a matrimonial pot, an illiquidity discount could be applied if the pension will not be available to the relevant party immediately. I rely on HHJ I Wong’s case of SSLT v SMFC [2019] HKFC 250 (para 44-48) and LWF v WST [2021] HKFC 164 (para 49-50) which laid down the principles succinctly :
77.The dispute on this item comes down to the amount of this MPF to be taken into account:
78.With regard to duration, looking at H’s latest Form E, he says that he has worked as a pilot since 16 October 2006. The date of marriage was July 2008 and the date of Petition was 22 November 2021; this is, for all intent and purposes, a long marriage of more than13 years. Applying this to the time when H has been working as a pilot, this would be 13.33 / 15 = 88.86% 79.As for accessibility to the retirement funds, H is now 48 years of age, the retirement fund shall be available when he turns 65, which is 17 years away. 80.Relying on the Court of Appeal case of Chan v Chung [2023] HKCA 560, which involved a marriage of just over 10 years, and where the accessibility to the MPF is five and a half years away; the Court of Appeal adopted a broad brush approach taking into account the long marriage and the time to collection of the retirement fund and says as follows at paragraph 14:
81.I recognise that the Court of Appeal case has taken a broad brush approach and incorporated the illiquidity discount into the overall percentage applied to the husband’s MPF in that case. Using the 80% from the set of facts in the CA case, and applying the principles enunciated by Cheung JA, I exercise my discretion to apply 66.66% (2/3) of the H’s MPF towards the matrimonial pot. This having considered the duration of marriage of 13 years, and also H’s accessibility to the funds to be around 17 years. Therefore, $4,883,889 x 66.66% = $3,255,600 will be applied to the matrimonial pot. H’s other assets: Loans by H to LC and LHC 82.W says that pursuant to documents produced by H, LH owes him at least $3,551,336. 83.W says H provided a loan agreement dated 1 December 2018 wherein H as shareholder of LH agreed to lend $3 Million to the company. Documentary evidence also shows (1) a transfer of $2 Million from the parties joint account to LH bank account on 3 December 2018 signed by H, and (2) a transfer of $1 Million from the joint account to LH bank account on 2 March (or May) 2019 signed by W. 84.I notice that according to the SJE report, he only records a liability to the shareholder of LH of $2M, but the SJE’s view was based on a letter from H’s previous accountant wherein they confessed to “funds of approximately HK2,000,000 were incorrectly recorded in the FS as service income of the Company instead of loan from the sole shareholder”, (ie H). This in my view does not change the fact that the abovementioned loan was for $3 Million, and such amounts were transferred according to bank documents. 85.There was another sum of $100,000 transferred from the joint account to LH bank account on 6 March 2019. In his 3rd Answer to W’s questionnaire, H acknowledges that this is part of the shareholder’s loan. 86.H confirmed that there was a third sum of $451,336 recorded as a loan to LH in November 2024. 87.The two loans of $3 Million and $451,336 also appeared in a document titled “2025 update and strategic plan” dated 8 January 2025 under the letter head of LH, both loans were recorded as “Shareholders Loan sand Liabilities”. Given the date of this document, it should be safe to say that it is sourced from H. 88.In the A & L Schedule, H says that these loans to LH is not “recoupable and mandatory repayment agreement not in place”, He says the companies are “insolvable with no liquidity, liabilities exceed its assets”. 89.W says that in cross examination, H acknowledged that these sums are outstanding and owing, but said that if the company is unable to pay, he as shareholder will forego the loan. But this has not yet happened. 90.As for LHC, W says $10,000 is owed by LHC to H, as this was the sum he declared to be owing to him in both his second and third Form E. Under cross examination, he turned around and said that this was actually the sum that he owed to LHC for payment of share capital. W submits that this is not credible as LHC’s 2023 draft AFS shows the shares as “Issued and fully paid”. I agree. 91.The SJE did say that the two companies financial condition is poor; but W contends that H do intends to continue operating the companies as a going concern. On this she relies on two facts:
While part of the H’s case appears to be how difficult businesses had been, I tend to agree with W’s submission. As it makes no sense for the H to be throwing good money after bad, nor for him to be potentially starting new projects if he plans to be winding down, or expect businesses to be continuously unprofitable. H has not put forward a case that his businesses will not be operating. 92.On H’s own evidence and lack of information to the contrary, I find that these are loans outstanding and due to him, and constitute part of his assets. H’s Liabilities H’s personal guarantee for debts of LC 93.H claims that he owes a contractor Mr C $4.4 Million. In the A & L Schedule, H’s comment reads: “Active debt collection action w/ personal guarantee. With signed debt recognition as disclosed during SJE investigation as a personal”. H also says there is “SJE letter – SH personally liable including debt inheritage.” 94.H makes no reference to anything in the bundles which supports his commentary. 95.What may be relevant is a document cited as “Entrustment Agreement” dated 7 September 2021 under the letterhead of a United Credit Management Ltd (“UCM letter”). I have no context to this document except this was produced in W’s 12th Affidavit citing it as one of the many documents provided by H to the Company SJE in early 2025. The Entrustment Agreement has a principal named F L Engineering Company of which the contact person was presumably Mr C; and the debtor was LH, with H as contact person, with the subject matter of a debt of $4,430,448. It also described the debt as occurring between 2015 to 2021. 96.It is with W’s counsel assistance that I am referred to the H’s third answer dated 7 March 2025 which mentioned “active debt collection agencies with personal liability for company debts” and “As a shareholder & person guarantor of the company’s debts, I am being actively pursued by debt collection agencies unless debts are recognised.”. At least 135 pages were exhibited to this 3rd answer but has no specific cross reference to the answers given. 97.W’s counsel says that the Entrustment Agreement was never produced in any of H’s Form Es. Not is there any documentary evidence of any personal guarantee. 98.W’s solicitors wrote to H on 24 February 2025 referring to the document given to the SJE, asking for (a) correspondence with Mr C concerning the alleged debt (b) Correspondence with UCM (c) explanation as to how he came to obtain the Entrustment Agreement and (d) a breakdown of the alleged debt with invoices and demands. H did not respond to this letter, and instead under cross examination referred to a “Dropbox link” with “about 500 plus document shared with the SJE”. This Court is not aware nor was I referred to any of these documents; and I have not been told if these documents which purport to answer W’s question is in evidence or not. 99.It is also important to turn to the SJE’s report in this regard:
100.Further, W’s counsel also argues that if this debt had been incurred, it would go back to more than 10 or 11 years, and some if not all would have been time barred under the Limitation Ordinance. 101.I accept W’s submission and also the SJE’s analysis, I have no documents nor reference to this alleged personal guarantee of this debt of $4.4 Million, hence will not be taking this liability into account. Loan from H’s Family 102.H has alleged that there is a “Parents Loan” of $649,235, but this only appeared in his second Form E dated 27 April 2023 and not before; the supporting document appears to be HSB account statements showing three transfers on 30 and 31 December 2020 totalling that amount. 103.W says that this is untrue and the Family Loan Agreement dated 1 December 2020 attached to H’s second Answers on 16 December 2024 and only produced 20 months later, is fabricated. 104.It is W’s case that H has first referred to this as a gift from the parents- in-law, she produced evidence of Whatsapp messages exchange with H in January 2021 (the month after the transfers and date of the alleged loan agreement) wherein H says that this was money his parents would gift to them: “mom and dad wanted to send some cash for awhile … rhats basically money they will gift us.” Under cross examination, he says he was not referring to this amount in the Whatsapp message. 105.W also contends that H never previously said the Whatsapp messages referred to different funds; on this she says this is despite “W asking about the messages in her 2nd Quesitonnaire on 30 November 2023, (b) W exhibiting the messages with her 6th Affidavit on 9 February 2024 (c) and H having had a chance to reply with his 2nd Affirmation on 3 April 2024”. 106.The only other reference that I have been directed to involving H’s parents was his claim in his 1st Form E that there were securities held in various securities account (FUTU and Sofi) which beneficial interests were held by his parents. W’s counsel criticized this discrepany in H’s two Form Es is not credible, counsel also reminded me that under cross examination , H’s retort to this was “In the end it’s the same thing”. 107.W also put forward her argument that the signature on the Family Loan Agreement in fact does not belong to H’s father. She produced the signature of her father-in-law on an OCI Card application. When asked under cross examination, H initially was able to identify his father’s signature but when asked why his father’s signature looks different in the Family Loan Agreement, he said he didn’t know whose name it was on the OCI Card application. 108.I am not of the view that H has come up to proof that there is a loan from his parents. It is observed that the Whatsapp message about gift from parents followed closely to the receipt of the sums; and H in the message said that the parents were given the HSB account to send the money, the transfer H referred to from the parents were indeed paid into his HSB account. I do not accept his explanation that there were different amounts as he did not say what those were, nor do I accept his contention that the assets he claims that his parents have interest (in the 1st Form E) and now these alleged loans (in the 2nd Form E) are “the same thing”. H failed to explain why these sums are not gift, and on the balance, I decide that no weight should be attached to the Family Loan Agreement. I therefore find that this amount is not part of H’s liabilities. H’s other liabilities 109.I will deal with this very briefly:
110.In the absence of any supporting evidence, none of the above items will be counted towards H’s liabilities in the matrimonial pot. W’s Assets 111.According to the A & L Schedule, W’s bank account balances, the amount of her MPF, and her liabilities are not challenged by H. 112.However, the amount of her MPF is $153,091; it is assumed that she worked after her marriage, and all of this amount is attributed to the duration of the marriage. However, this amount needs to be adjusted for illiquidity discount. Given that she is 42 years of age, and 23 years from collecting her MPF, I shall apply a 50% illiquidity discount to this sum, therefore placing $153,091 x 50% = $76,545 into the pot. W’s Liabilities 113.The most controversial item is W’s loan from her family members of $1,300,000. While H commented on other items in the A & L Schedule, he did not challenge the W’s family loan in the schedule; nonetheless, he then added this in as an issue in the Joint List of Issues. 114.W has explained why this was needed. I agree with her that it is well documented and very clear as this case evolved, that H had stopped depositing his salary in their joint account, W had no income as she was dismissed by H in April 2022 from the family business; and H has failed to pay the MPS, interim maintenance and legal costs provisions which were ordered in October 2023. This put W in a situation where she has no option but to resort to borrowings from her family. 115.The evidence that W provided include the following:
116.On this issue, I refer to the case of P v Q [2022] WLUK 268 with reference to soft loans, for completeness and reference, the relevant paragraphs from His Honour Judge Hess are quoted below:
117.I draw guidance from the above principles and make the following observations: I take the view that there is a binding obligation to pay. It is quite clear to me that there is no intention of a gift here from W’s family to W. The loan commences after the proceedings were initiated; against the background of W being left in dire financial straits by H, and is credible in that there is an on-going need for her family to reach out to assist. The Statement is important in recognizing that there is a deadline and expectation for the repayment to be made. The deadline was reasonable in that it looks to the estimated end of these ancillary proceedings. W’s counsel reminded me that H’s cross examination of W on this subject went to how cash payment was delivered, W says her brother had paid for an agent for cash delivery to her. H’s questions failed to cast any doubts on W’s case. On a balance of probabilities and based on above observations, I find that there is at least a $1.3 Million liability owed by W to her family. The Matrimonial Pot 118.Based on my analysis above, my calculation of the matrimonial pot is as follows:
119.I therefore find that the amount of the matrimonial pot is $11,087,111 – $5,219* (negative amount in the joint account) = $11,081,892. 120.In coming to these numbers, I have also taken into considerations the following factors:
W’s Income and Earning Capacity 121.She has no personal asset to her name except for the bank accounts and MPF as set out above. 122.W has been a housewife for a large part of the marriage; but had worked at the H’s companies and received salaries for it. She had also tutored at a tutoring centre in the past. 123.Looking forward, in between caring for N with her special needs, W hopes to find work as a part time tutor and estimates income level at $15,000 per month. This appears to be accepted by H in his oral submission. H’s Income & Earning Capacity 124.The following table illustrates W’s case of H’s income, and his own declaration in his updated Form E:
125.H’s income is mainly sourced from his work as a pilot, it is W’s case that he also receives income from his companies, and from the UK Property Q. Income as a Pilot Basic Salary and Allowance 126.First of all, H’s number should not be “after tax”, I have reconstrued the numbers taking into account 17% tax rate and put those numbers in brackets under H’s column. 127.When the numbers are reconstrued, the basic salary, housing / monthly allowance and education allowance seem to align. Referring to the Pay advices of January and February 2025 submitted by H, and per W’s counsel, the items of basic salary, education allowance and monthly allowance are not disputed. 128.The rest of numbers under H’s column have no supporting, at least none that were referred to me. H says his declared bonus was averaged across 17 years, again, I have no reference to the disclosure of these supporting documents. 129.I will look at other categories of income below. Monthly Productivity Pay 130.According to the Condition of Service produced by H in his 1st Answers to Questionnaire, the calculation of the “monthly productivity pay” is in accordance with a formula: Actual Block Hours less Minimum Block Hours x Block hour rate The most recent “Block rate” appearing in Appendix 3 of the Employee Handbook for pilots Revision 12 (the “Handbook”), effective 1 January 2025, is $1681.14 hourly. And the Minimum monthly Block Hours is dependent on the fleet which the Officer operates, based on the relevant Appendix 2, it is 49 hours if H flies a 777 or A330/350. 131.W’s counsel says that the dispute is over how many Block Hours H had been flying. On this, counsel puts forwards the following arguments:
I share the same sentiment. 132.I make reference to some attachments provided by H via email to W’s solicitors on 2 April 2025, just 5 days before the Trial. H has put in a table his regular and secondary pay for the period from April 2024 to March 2025, together with a number of his payslips. His regular pay is usually around 26th / 27th of the month and consists of the education allowance, monthly salary, monthly allowance on a monthly basis, and also “Profit sharing” at the end of the year . And the secondary payslip issued around 7th of the month includes inter alia, flying allowance, monthly productivity pay, holiday pay adjustments and Sim Crew-up allowance. 133.I am mindful that these are not in sworn evidence, but given these are company issued payslips, I will give them due weight. 134.What is relevant to me is the monthly productivity pay which I set out as follows from various part of H’s evidence, including those from this aforesaid email:
**This month H received discretionary bonus and annual productivity bonus at $98,804 + $26,470 = $125,274 135.My observation is that H has been consistently receiving monthly productivity payment, the fact that he did not produce any secondary payslip for some of the months does not necessarily mean there are none. The average amount for the 2 years prior to the hearing is in the range of $38,830 to $41,179. In the consideration of his allegation that he had been flying less in early 2025, W’s counsel says that this was after flying to the maximum of 900 hours on the year by October 2024. I have no evidence as to the protocol when this happens to a pilot, and the extent to which it may affect the number of hours he can fly immediately after; this remains an open question. I also accept W’s counsel’s submission that H had taken a number of leave days; based on the evidence he provided, he was on leave from 25 November to 15 December 2024, then from 20 January to 9 February 2025, and for 10 days in April 2025, this would have reduced his block hours, but it does not support his contention that he has no or less of such pay going forward. 136.In brief and on a balance of probabilities, I accept W’s submission that there is a monthly productivity pay, while this may not be received every month due to the scenarios described above, there can be an average monthly amount. W submits that H should be taken to fly 70 hours per month (which is the airline’s target annual block hours of 840 /12), which is 21 hours more than the monthly minimum of 49 hours. This equates to (70 – 49) x $1681.14 = $35,303 of monthly productivity pay, which is less than the average numbers I calculated above. Annual Productivity Bonus, Discretionary Bonuses & profit Sharing 137.W submits that H is entitled to Annual Productivity Bonus (which is received when H has accumulatively flown more than the annual target hours), Discretion Year-end Bonus and Profit Sharing. The following table is largely from W’s closing submission:
138.W submits that for 2023, if removing the ex-gratia payment, there is a total of $286,596 which average out to $23,883 per month, and submits that this is the additional amount H would be expected to receive. I accept W’s argument that based on past pattern, H is likely to receive these items of additional payments, W has not claimed the full amount that could be taken from 2023 (which is $408,924/12 = $34,077), I think this estimate is more than fair. Holiday Pay and Annual leave pay 139.W submits a table attached to her opening submission which records from payslips H’s entitlement to working on “statutory holidays”, this comes up to an average of $1,117 and which she says was confirmed by H under cross examination to be “reasonable”. Cash Allowance 140.W says H is entitled to “Overnight and Meal Allowance; Per Diems” as provided in the Handbook. She relies on a document submitted by H under his November 2023 variation application which shows an item of “Cash Allowance from CHASE (Consumed on overseas mission and long quarantine)” of $486,000 . This amount is logged under March 2023 in his document, but I am unable to find this amount in H’s SCB account statements during the relevant months, nor in the payslips. W’s counsel submits that these amounts are received in cash, which I doubt. But as this is from H’s own evidence, he did not deny the record of this amount he received. W’s counsel says that H did not provide the equivalent information for 2024, nor information relating to “Allowance” under his contract; H’s response to this is that he is not allowed to share and that he was not asked to produce. W therefore says that H should be attributed at least half of this 2023 amount as his pay under this item, which makes it $243,000 and averaged to $20,250 per month. Other income 141.W has compiled a list of deposits into H’s SCB account which reference payment from his airline company, this appears as Appendix B in her opening submission titled “2024 [Airline company] Payments not on Payslips”. These are extracted from the bank statements that H provided. The amount totalled $86,797 averaged out to $7,233 per month. 142.W’s counsel reminded me that under cross examination, H argues that these were his per diem payment for 2024 and he said he had provided the relevant screenshot. H made no reference to this in the bundles of evidence; it is therefore not accepted that he had produced the document. 143.In the absence of any satisfactory balancing argument from H, I accept that these miscellaneous items are likely to be additional allowance given to H under his contract. 144.H says his income should only be viewed from the salary tax bills. For completeness, I extract the figures from the evidence and list as follows. While the numbers appear to show a downward trend during and after covid, the last figure I have shown an increment from the previous year.
145.It appears to me that W’s case of H’s income referred in paragraph 124 above is large made out, those figures tally a monthly sum of $207,163. Admittedly due to the nature of H’s work, the complexity of his pay structure, and the lack of disclosure from H with regard to at least his Rostering Guideline and Allowance section referred to in the Handbook, it is not possible to place a finger on the exact monthly amount (or range) he is making. Other Resources : Income from his Company 146.W argues that H’s other resources come from drawings from his companies LH or LHC, and that the companies have been paying for H’s various expense. 147.Firstly, W says that LH had been paying for the H’s rental, at least from March 2022 until November 2023, the latter date W’s counsel submits that it was strategic as it ended on the month after the October 2023 MPS Order and H filed his application to vary maintenance. 148.W’s legal team has also usefully compiled numbers from the Company’s LH and LHC bank account and credit card statements. Some of these goes back to 2019/2020, throughout the divorce proceedings, and into November 2024. The companies have been paying for:
149.Under cross examination, H says these sums are “borrowed”. W’s counsel submits, and I agree, that as shareholder of the companies, he can label these amounts under any category, be it as salary, emolument or loan. Furthermore, H has not made any reference to liabilities owed to the companies for these sums. 150.W has previously asked H to identify which expenses are for companies and which are personal in her 3rd questionnaire and H has failed to answer the question. He has also failed to produce supporting documentation of the expenses when asked. 151.If H maintains this is a Director’s loan, he has failed to provide any supporting documentation for this contention. 152.W asks that H be inferred in his ability to draw at least $21,000 per month from his companies, using the amount of rental as a basis. This is a modest estimate, and he had clearly been drawing more than this amount. It is my finding that the companies are his financial resources which supplements his living expenses. Other Resources : Income from Q 153.H receive GBP1,310 rental from this property, this appears from a statement addressed to the Landlord from the agent managing Q, and beyond dispute. Comments on H’s Income 154.Looking at H’s income as a pilot, and taking it at the lowest, he is making $153,173 on his own evidence. He has an earning capacity of $194,209 pre-covid, and even during covid, he was making more than $180,000 per month. H says there had been a pay restructuring but again I have not been taken to any document issued by his employer airline in support. I accept W’s counsel’s submission on the various allowances he receives, which H has clearly under reported. I also accept that he has the ability to draw from his two companies of which he is a 100% shareholder, and H has not been able to prove that the miscellaneous items W put into evidence are merely loans as he claims. The rental income from Q in the UK is also unequivocal, although the related expenses will be taken into account below. 155.I find that the H has more income than he declared. Relying on the above-mentioned legal principles enunciated in the case of Moher v Moher, I do not need to come to an exact figure on H’s income and financial resources. Further, based on the Order I made on 21 February 2025, and in the absence of H’s filing his narrative affidavit, I shall draw the necessary inference against him on his ability to pay for the Orders I am due to make in this decision. Assessing Parties’ Needs W’s Financial Needs 156.W asks for a clean break in her open proposal. She provides her updated expenses in her most recent Form E. In the circumstances, I still need to look at her general expenses as claimed, the following numbers are extracted from her narrative affidavit:
157.As the amount of general expenses will affect N’s expenses, I need to assess them for reasonableness. I am of the view that various expense items are exaggerated, and I will take a broad-brush approach and propose the following adjustments taking into account the expenses are for one adult and one child:
The General expenses will therefore be $30,000 + $3,600 + $5,000 + $3,000 + $7,000 + $1,000 = $49,600. 158.The following is the W’s declaration of her own expenses.
159.While I take the view some of her expenses are on the high side, W is not asking for spousal maintenance from H. That said, I find that that she should be able to manage her portion of the general expenses and her personal expenses with her own income and from the Order to be made herein, with appropriate adjustments to her discretionary spending. N’s Needs 160.W produces the following numbers for N’s needs; the right-hand column shows the Court’s assessment.
161.I also take the view that these numbers could be pared down. In a divorce scenario, while standard of living is not substantively challenged, W should look to some economizing for both herself and N:
162.W asks that due to the disparity of income, H should carry all of N’s expenses. Given that H’s earning capacity is more than 10 times of the W, I agree that this is a fair and reasonable ask. This would mean ½ share of general expenses and N’s own expenses as adjusted by me. N’s expense is therefore assessed at $ 24,800 + $17,250 = $42,050. I shall round this down to $42,000. H’s Needs 163.The following of H’s numbers are from H’s latest Form E, and on the right-side, W’s position regarding his expenses extracted from her narrative affidavit.
164.Other than not comprehending why “furniture and moving” is a monthly / recurring expense; I am of the view that some of H’s numbers are also exaggerated. I agree with W that his expenses on food, and utilities and meals out of home are high and I am inclined to agree with her proposed numbers; more importantly, as items relating to the FMH is likely not be required going forward, those carved off more than $50,000 from his expenses. 165.Taking into regard his own numbers, and W’s counsel’s submission regarding his income. I find that that H’s needs can be satisfied from his income, and if need be, with some economising on his end as well. At his age, he has ongoing earning capacity, and access to his retirement fund in due course. 166.On his own evidence, H’s income is $153,173, it is my finding that he can and has the capacity to make more, and he has other financial resources. Using his own numbers and net of the expenses from the above assessment, $153,173 – $89,159 = $64,014, he is well able to afford the full amount for N of $42,000; and he would have more surplus than from this calculation based on the analysis above. Other factors taken into account Parties living standard 167.H has not put forward anything to dispute W’s case with regard to her standard of living. Her narrative presents a more than average living standard: 3 bedroom apartment in the mid-levels, domestic help, organic food, upscale restaurants, brand name clothing, gym membership and regular grooming. W’s evidence could be seen from her credit card statements and a number of receipts in evidence. 168.In the absence of any evidence to the contrary, and H’s failure to cross examined on this topic or put his own case forward, W’s case is accepted. H’s litigation conduct 169.There are allegations of serious litigation conduct on H’s part. This was well presented in detail in the W’s 12th Affirmation, to show the stark severity of his conduct, and deserved to be quoted in full:
170.The above narrative speaks for itself. As H has not taken up this point at all at the hearing, nor present any explanations for his delinquency, I take the view that H’s conduct needs to be fully taken into account. It has caused delays in these proceedings, and W has incurred extra costs for applications to chase his payments, attended additional hearings only to find out that he was seeking further extensions for compliance with Court Orders, which he then again failed to comply. 171.Further and not mentioned above, H had then chosen to do further “document dumps” with his 3rd Answers (135 pages of exhibits) and his variation application (264 pages of exhibits), both submitted within a month of the trial, which have no cross reference to the main document; he involved the SJEs with last minute exchanges, and still failed to provide adequate information on request. 172.With regard to H’s non-payment of maintenance, I make reference to W’s narrative affirmation. She says as of 20 February 2025, the following payments are outstanding:
In the absence of evidence to the contrary, these amounts are outstanding still and accumulating. 173.H has also failed to pay for the child’s maintenance of $17,000 per month, and W had to incur extra legal costs to apply for an Attachment of Income Order on 29 December 2023 which was granted on 29 May 2024. This Order incorporates payment of the monthly $17,000 and the previous outstanding payments to be made over 36 months. 174.I do not find H to be a credible witness, there are multiple occasions when his utterances are proved to be untrue or not substantiated (inter alia, under reporting his income, disputing the loans he made to the company, suggesting a debt collection issue with flimsy documentation in support with no context, disputing the gift from his own family calling it a loan despite the evidence from his own Whatsapp messages to W). H has chosen to participate in these proceedings on his own timetable without due regard to or respect for Court Orders. While H has produced a number of financial statements, I also find that he has still failed to provide pertinent information that support his arguments nor produce explanations and information when asked by W. His contentions are therefore almost wholly unsupported. Other conduct 175.For completeness I will also touch on the topic of a $297,500 alleged to be removed by W from the account of LH. W says he had been receiving a salary of $59,500 from LH from 2020 right up to September 2021 when H stopped paying her salary. This is the month leading up to the parties’ argument which involved police intervention in October 2021. W said she had used up her limited savings since and on 27 January 2022 took out $297,500 being the sum owed to her as salary for 5 months from September 2021 to January 2022. While complaining about this act and how this had affected operation fund flow for the company, H had actually mentioned the amount of $60,000 as W’s salary more than once in his affidavit supporting his variation application, and he had never said that this 5 months’ salary was not owed to her. There were subsequent discussions on reduced salary to her after this incident, until April 2022 when W says she was constructively dismissed by H from LH. 176.H had in his Form E says W had removed various sums from Joint account to personal account in 2022 but provided no details of such allegations. 177.H also alleges there were “multiple incidents of fabricated / falsified” domestic violence, where police in “all cases dismissed the cases including the court”. To this allegation of fabrication, W refers to an incident on 18 October 2021 when there was alleged domestic violence at the FMH wherein W said to the police that H had pushed her and dragged her across the rooms at the FMH. It was N who reported to the police. W says that in November 2021, she gave a statement to the police saying that she would not be attending court to give testimony, as a result of which the charges of common assault against the H was withdrawn. H’s case was not “dismissed” as he represented, nor was he acquitted. 178.The conduct to be considered if to be taken into account for my assessment of ancillary relief, must be one of “obvious and gross”, I am of the view that none of the above incidents under this heading reach the threshold for my consideration. Application of the Sharing Principle and departure from equality 179.This is a marriage of 13 years where both parties had contributed considerably. H as the breadwinner; and W as a home carer with a special needs child, and she worked at H’s two businesses. W asks for equal sharing of the matrimonial pot. H has stated no position. I agree with W. Deciding the Outcome 180.Referring to paragraph 119 above, the amount of the matrimonial pot is therefore $11,081,892. 181.I am conscious at this point, that I am facing a situation where, if I were to take into account W’s liability for legal fees of $2,151,006 (which is the unpaid legal fees appearing in her updated Form H); and to award costs to her as I am entitled to do in this case, then there may well be double counting. 182.I have therefore decided to leave the amount of her legal fees to be dealt with under Costs, and to re-look at the size of the pot in that light. 183.The matrimonial pot, after removing $2,151,006 liability from W’s side of the balance sheet, will become $13,232,898. 50% of this will be $6,616,449. 184.In awarding W 50% of the pot, the equalisation amount W shall receive is $6,616,449 + $1,590,989 (being the summation of W’s liabilities from her credit cards and the family loan) = $8,207,438. 185.This leaves $5,025,460 to H. 186.The disparity in these numbers comes from a need to make good the lack of maintenance that H has failed to pay in his blatant disregard of a Court Orders, proper adjustment is called for. I am of the view that the assessment reflects a fair outcome. H’s Variation of Maintenance Application 187.H’s variation application has not come up to proof:
188.W’s alleged expenses have been adjusted by me, and her earning capacity taken into account. H’s ability to pay has been considered. 189.The amount of maintenance has been varied under these ancillary relief proceedings but not based on H’s application. There is no more maintenance due to W, and N’s maintenance has been adjusted taking into account her share of the general expenses. The Attachment of Income Order 190.There is an existing Attachment of Income Order. This is for the $17,000 for N, as well as arrears of $9,916.60 from May 2024 for 36 months. Given that I have assessed N’s needs to be $42,000 in this decision, and that H is to bear the whole amount, there is a need to vary the amount for the AOI Order. 191.I shall exercise my discretion under the Rule 9(1) of the Attachment of Income Rules (Cap13A) to vary the AOI Order made by me. 192.W says that she has complied with Rule 5A to give notice to the H in advance of the Trial with a Form 3A, this was filed on 2 April 2025. 193.An Order for $42,000 shall be made under Form 4 of the Rules. 194.For the avoidance of doubt, paragraph 3 of the Order made on 29 May 2024 shall remain in force until full payment. Costs 195.I see no reason why Costs should not follow the event. There shall be a Costs Order in W’s favour. Given the litigation conduct which was elaborately set out above, this is a case in which an Indemnity Costs Order should be made. Orders 196.For the reasons aforesaid, I make the following Orders:
197.Finally, I take this opportunity to acknowledge the able assistance of W’s counsels.
Petitioner represented by Mr Shaphan Marwah and Ms Aria Cheung instructed by Oldham, Li & Nie Respondent acting in person
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Cases cited in this judgment
Further hearings and rulings under FCMC 11862/2021